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National Minimum Wage back pay for sleep-ins - Government review

16 February 2018

Further to the launch of the Social Care Compliance Scheme (SCCS) in November 2017, the Department of Health and Social Care has announced that it is commissioning further research to gauge the extent and effect of the liabilities social care providers face for underpayments of national minimum wage for sleep-in shifts.

During January-March 2018, the Government will be gathering data from local authorities, clinical commissioning groups, and a selection of social care providers throughout England. This follows unpublished research carried out by Deloitte last year, which the Government says was limited due to the need to collect evidence very quickly. The Government has made clear that this piece of research will paint a better picture of the current state of the sector and will give “ministers better information on which to base their decisions.”

However, charities have criticised the announcement on the basis that many providers will struggle to respond to the survey and are concerned about the short timescale.

Whilst the Government’s intentions are unclear, it seems reasonably likely that the SCCS will not be the end of the matter. There are growing fears that back-pay alone has the potential to make social care providers insolvent and therefore employers will be hopeful that this new research will encourage the Government to put some form of financial assistance in place.

There is no timetable for the data to be released and it is not clear what the outcome of the review may be. However, it may impact on providers’ decisions about when or if they join the SCCS, with the absolute deadline for doing so being 31 December 2018. In the meantime, we recommend providers continue to assess whether or not back pay would be payable, consider whether or not the SCCS would assist them and, if necessary, make preparations for the payment of arrears. For those providers who have already joined the SCCS, the outcome may affect when they want to submit their declarations (within those deadlines set by the SCCS).

We are happy to assist any employers who are require further advice on whether or not to join SCCS and the extent of their liability for any underpayments/arrears.

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